f) Insufficient space and personnel were provided during peak periods for registration and voting, resulting in disorderly, long lines which discouraged members from voting.

g) Ballot boxes were moved out of the voting area and were left unattended.

h) The ballot was put together in such a way as to make it difficult for the members to understand what they were voting on.

Plaintiffs claim that such actions so tainted the vote that it was "run in violation of the member's and plaintiffs' right to an equal vote" in violation of LMRDA § 101(a)(1). Plaintiffs further assert that said actions "will also serve to discourage members from exercising their rights to vote in the future."

Defendant contends that the limited hours of the February 19 vote, the form of the ballot used in the referendum (exhorting the membership to vote "No" to the proposed amendments), and the other alleged election irregularities contained in Counts I and III of plaintiffs' amended complaint do not constitute a cause of action under the LMRDA and are beyond the scope of judicial intervention.

The purpose of the LMRDA is to guarantee the "full and active participation by the rank and file in the affairs of the union." American Federation of Musicians v. Wittstein, 379 U.S. 171, 182-82, 13 L. Ed. 2d 214, 85 S. Ct. 300 (1964). Title I of the LMRDA is referred to as the "Bill of Rights of Members of Labor Organizations" and § 101(a)(1) provides for the equal rights of union members to vote in elections or referendums. 29 U.S.C. § 411(a)(1) and (2).

The Congress, by passing a 'Bill of Rights' for union members determined that the efficiency of a monolithic union under autocratic rule was gained at too great a price if it necessitated any sacrifice in the members' rights to determine the course of their organization. The balance was struck in favor of union democracy.

Defendant relies on Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964) to support his contention that plaintiffs' allegations are beyond the scope of judicial intervention:

The provisions of the LMRDA were not intended by Congress to constitute an invitation to the courts to intervene at will in the internal affairs of unions. Courts have no special expertise in the operation of unions which would justify a broad power to interfere.

The [union] officers had a duty under the LMRDA to conduct a fair referendum, and that obligation should be enforced by the courts. No special expertise in union affairs is required; for more than a hundred years the courts have been dealing with similar rights of members of unincorporated associations."

Id. at 1282 (citations omitted).

In Bunz v. Moving Picture Machine Operators' Protective Union Local 224, 186 U.S. App. D.C. 124, 567 F.2d 1117, 1121-22 (D.C. Cir. 1977), the court stated that the equal right to vote protected by LMRDA § 101(a)(1) is more that "the mere naked right to cast a ballot" and that "evidently the equal right to vote may be denied upon the occurrence of serious discrimination, irregularities, or foul play at any stage of the electoral process." A fair referendum assuring the equal right to vote under § 101(a)(1) includes the right of members to have the vote scheduled at a time when they can exercise their vote and the right to be free from intimidation or fear of reprisal from union officials--and the courts in this circuit have not been reluctant to act when faced with the responsibility for vindicating such rights.

In Jiminez v. Briody, 134 L.R.R.M. at 3122, the court, pursuant to LMRDA § 101(a)(1), ordered a new date and extended hours from 9 a.m. to 10 p.m. for a referendum on union bylaws because approximately 10% of the membership would have been disenfranchised if the vote were scheduled as the local union had arranged. In Navarro, a case which involved the threatened supervision of a local union's meeting by representatives of a parent labor organization, the court held that "the guaranty in Section 101(a)(1) of the equal right to participate in the deliberations and voting at union meetings . . . necessarily encompasse[s] the right to assemble, consult, and decide matters of concern to the local union without the inhibiting presence and control by international officials." 385 F.2d at 518. Furthermore, in Fight Back Committee v. Gallagher, 120 L.R.R.M. 2372, 2375-76 (S.D.N.Y. 1985), the court intervened in a union vote where the union officials published an intimidating leaflet, used a video camera at the vote, and employed over 525 sergeants-at-arms at a union meeting.

Defendant does cite cases which stand for the proposition that the courts will not intervene in the actual wording of the ballots. In Jiminez, 134 L.R.R.M. at 3122-23, the court refused to intervene in the formulation of the ballots and how they were drawn up. In Soto v. Int'l Org'n of Masters, Mates, & Pilots, 466 F. Supp. 1294, 1300 (S.D.N.Y. 1979), the court held that union officers may use the power of their office to print ballots which are designed to advance their agenda, even if the ballots are somewhat misleading or involve "political trickiness."

In those cases, however, there were no allegations of possible intimidation along with the alleged balloting irregularities. Here, for the purposes of this motion, I must not only credit the allegation that the ballot clearly exhorted the voters to vote "No", but I must also accept as true the other allegations of improper behavior contained in the complaint--including claims that union officials wearing "Vote No" stickers maintained a formidable presence in a voting area where no provisions were made for any private place to mark the ballot to the contrary if so desired. Accordingly, considering the referendum allegations contained in Counts I and III of plaintiffs' amended complaint as a whole, I find that plaintiffs have stated a cognizable claim under LMRDA § 101(a)(1) and thus defendant's motion to dismiss is denied as to Counts I and III.
*fn3"

Turning to Count II, the plaintiffs allege that the Local's failure to publish plaintiffs' proposals in the Local 32B newspaper, their twice publishing a negative recommendation by the Local Executive Board without explanation, and their failure to provide plaintiffs with an opportunity to respond at the Local's expense,
*fn4"
constitute violations of Section 101(a)(1) and (2) of the LMRDA.

In Sheldon, the Second Circuit held that union officers did not violate the LMRDA by refusing to publish the views of union dissidents on constitutional amendments in the union newspaper. 497 F.2d at 1282.

[The duly elected officers of a union] have a right to use the union publications to express their views, and are not ordinarily required to give space therein to the expression of contrary views, providing they do not interfere improperly with whatever rights members may have to communicate their views to other members. . . . We do not hold that defendants were required to give plaintiff's space in the union newspaper to present their views.

Id. The D.C. District Court ruled similarly in Durham v. Carey (1994 U.S. Dist. LEXIS 2272, 145 L.R.R.M. 2946, 2947 (D.D.C. 1994)(union officers' failure to pay for dissemination of dissidents' views opposing certain constitutional amendments, while simultaneously publishing its own view in union newspaper did not violate LMRDA). In contrast, the Sixth Circuit in Knox County Local, National Rural Letter Carriers' Association v. National Rural Letter Carriers' Association, 720 F.2d 936 (6th Cir. 1984), held, on First Amendments grounds that where the union newsletter was the most economically feasible means of communicating with the members, the union may be ordered to publish the views of the dissidents in a paid advertisement in the newsletter.

Plaintiffs argue that Knox applies to their situation as dissidents in a large union where the union newspaper is the only reasonable way to communicate with the membership. There, however, the union refused to publish a paid advertisement for which the local union submitted a $ 460.00 payment. The court found that the union's content-based refusal to permit access to its open forum newspaper was a restriction on the dissidents' rights. In this case there has been no payment or offer to pay for any advertisement. Plaintiffs rather are claiming that the union both failed to publish their views in the Local newspaper and failed to provide them with an opportunity to respond to the membership at the Local's expense.

Plaintiffs also rely on Sheldon to support their claim. In that case, the court, under LMRDA § 101(a)(1), did uphold the dissidents' right to access to the union mailing list (not the newspaper) to express their views but in that case the ruling was expressly based on the fact that the dissidents offered to pay for the distribution of its own mailings. Accordingly, I conclude that, unlike Counts I and III, Count II of plaintiffs' amended complaint does not state a cause of action under LMRDA § 101(a)(1) and (2) and is therefore dismissed.

Plaintiffs assert, nevertheless, that MBU does have standing because, as stated above, LMRDA § 102, 29 U.S.C. § 412, permits any person whose rights have been violated to bring an action. The word "person" is defined at 29 U.S.C. § 402(d) as "one or more individuals, labor organizations . . . associations [or] . . . unincorporated organizations." Plaintiffs therefore contend that MBU is a "person" within the meaning of the statute. However, I decline to so interpret and apply the statute here because even if MBU could be considered a "person" under the statute for some purposes, it, as a caucus, has no right to cast a vote in a union referendum, and therefore its rights have not been infringed by the alleged misdeeds asserted in Count I and Count III of the complaint which specifically relate to voting irregularities.

Accordingly, only the individual plaintiffs, and not MBU, have standing to assert claims under Count I and Count III of the amended complaint, and therefore, although of no material impact on the progress of this action, MBU is stricken as a plaintiff herein.

The parties are to appear before me for a conference on September 5, 1997 at 2:30 P.M. in Courtroom 1106.

The foregoing is so ordered.

Dated: New York, New York

August 1, 1997

Richard Owen

U.S.D.J.

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